Guthrie v. Guthrie

• Decision Date: 28 January 1892
• Citation: 51 N.W. 13,84 Iowa 372
• Parties: GUTHRIE v. GUTHRIE.
• Court: Iowa Supreme Court

84 Iowa 372

51 N.W. 13

GUTHRIE

v.GUTHRIE.

Supreme Court of Iowa.

Jan. 28, 1892.

Appeal from district court, Jasper county; D. RYAN, Judge.

Action in equity to restrain defendant from selling or otherwise disposing of certain personal property owned by the ward of plaintiff. A decree was rendered in favor of plaintiff, from which defendant appeals.H. S. Winslow, for appellant.

Alanson Clark, for appellee.

ROBINSON, C. J.

The plaintiff claims to be guardian of the estate of Amos G. Guthrie, a person alleged to be of unsound mind, by virtue of an appointment made by the circuit court of Jasper county; that his ward owns certain personal property described in the petition; that defendant has wrongfully disposed of a portion of that property, and, unless restrained, will dispose of the remainder, without authority of law. The defendant denies that plaintiff is guardian, as claimed. It is conceded that plaintiff is entitled to the relief demanded if defendant has failed to establish her defense. On the final hearing a decree was rendered for plaintiff as prayed.

The material facts upon which the determination of this case rests are as follows: Defendant is now, and has been for many years, the wife of Amos G. Guthrie. In March, 1881, she filed in the circuit court of Jasper county an unverified petition, in words as follows: “Your petitioner respectfully represents that she is the wife of Amos G. Guthrie; that she is living in the bonds of matrimony with said Amos G. Guthrie; that they have two children, of the ages of two and four years, respectively; that said Amos G. Guthrie is seised of certain valuable real estate, situated in Newton township, Jasper county, Iowa, on which your petitioner and her husband and children dwell; that said Amos G. Guthrie is also possessed of valuable personal property; that the whole value of his estate is about four thousand dollars. Your petitioner further represents that her said husband is a person of unsound mind, to such an extent as to be incapacitated for conducting his business safely, and for taking care of his estate; that he received said property, for the most part, by will from his mother; that, by said will, his brother George Guthrie was made his guardian for three years, which three years has expired. Your petitioner, therefore, respectfully requests that she be appointed guardian of her said husband.” An original notice was personally served on the husband. Subsequently a record was made in the proceeding as follows: “Mary E. Guthrie v. Amos G. Guthrie, of unsound mind. S. G. Smith appointed guardian ad litem for defendant. Mary E. Guthrie, wife of defendant, appointed guardian, to give bond in the sum of $500.” The wife failed to give bond, and in November, 1883, John G. Guthrie made application for the appointment of himself or some other person as guardian, and one Green Bridge was appointed. He qualified and entered upon the discharge of the duties of the office; but in April, 1885, he resigned, and plaintiff was appointed to succeed him, gave bond, and commenced to act as guardian. In January, 1887, defendant applied to the circuit court of Jasper county for the removal of plaintiff, on the ground that there was litigation pending between plaintiff and his brother G. W. Guthrie, in which the ward was interested. After a hearing on the application the removal was refused in March, 1887. It appears that, for some reason not disclosed by the record, plaintiff was again appointed guardian, and filed a new bond. At the October term, 1888, of the district court of Jasper county, defendant again applied for the removal of plaintiff. The application was based on alleged wrongful management of the estate, and fraud on the part of plaintiff, and hostile feeling between him and defendant, and on hearing was denied. No adjudication as to the mental condition of Amos G. Guthrie was had after the order of 1881, which appointed defendant as guardian. In all subsequent proceedings it was assumed that the ward had been duly adjudged to be of unsound mind. It is insisted by appellant that the record fails to show the necessary adjudication; that the failure to verify her original application for guardianship was a fatal defect; that the averments of her petition...